Friday, December 17, 2010

Ind. Decisions - 7th Circuit decides 2 Indiana cases today

Appellant Charles Tanner
abandoned a promising career in boxing to become a
major player in a conspiracy to distribute large amounts
of cocaine. Like many other drug dealers, Tanner was
caught when his co-conspirators turned on him in an
attempt to reduce their own prison time. After a jury
convicted him for his role in the conspiracy, Tanner was
sentenced to life in prison, in large part because of the significant amount of cocaine he helped distribute.
On appeal Tanner argues that the prosecutor violated
his Fifth Amendment privilege against self-incrimination
by pointing out in closing arguments defense
counsel’s failure to rebut the government’s case. Tanner
also argues that the district court improperly admitted
certain evidence against him and instructed the jury
improperly. Tanner further asserts that the district court
miscalculated his advisory sentencing guideline range
and that life imprisonment is unreasonable.

None of Tanner’s arguments warrant reversal of his
conviction or his sentence. A number of individuals
other than Tanner could have been in a position to rebut
the government’s case, so we find no error in the prosecutor’s
closing argument. Except for certain testimony
regarding Tanner’s possession of a firearm on one
occasion, all of the complained-of evidence was clearly
admissible. The one exception was harmless. As for
the jury instructions, the district court’s only error was
in giving an “ostrich” instruction lacking sufficient
factual support in the trial record. That error was also
harmless. The district court properly calculated Tanner’s
sentence, and a life sentence was reasonable under these
circumstances. Accordingly, we affirm.

The CBA’s arbitration clause creates a presumption
that the Union’s grievance is arbitrable. Because the
CBA does not expressly exclude the grievance from
arbitration and the Company has not shown most
forceful evidence of the parties’ intent to exclude the
grievance from arbitration, the Company has not
rebutted the presumption of arbitrability. Therefore, we
AFFIRM the district court’s grant of summary judgment
in favor of the Union, Jenkins, and Smith.